Page 16 - COVID Executive Order Survival Guide Brochure

For other contracts, some of the best tools available are the Changes clauses in your contracts. The FAR includes a number of Changes clauses, such as FAR 52.243-1, -2, and -3, as well as 52.212-4(c). Under FAR 52.243-1, for example, the CO is permitted to make changes to the delivery location, the specifications for products being acquired, the shipment or packing method, the “description of services to be performed,” and the time and place of performance of the services. Key to recovery of costs and obtaining schedule relief under these provisions, however, is notice to the Government of the cost and schedule impacts of the changes.
According to OMB COVID-related guidance issued toward the beginning of the pandemic, COs should consider requests for equitable adjustment “on a case-by-case basis in accordance with existing agency practices, taking into account, among other factors, whether the requested costs would be allowable and reasonable to protect the health and safety of contract employees as part of the performance of the contract.” OMB went on to remind COs that “The standard for what is ‘reasonable,’ according to FAR § 31.201-3, is what a prudent person would do under the circumstances prevailing at the time the decision was made to incur the cost (e.g., did the contractor take actions consistent with CDC guidance; did the contractor reach out to the contracting officer or the contracting officer representative to discuss appropriate actions).”
We provided a more robust discussion of cost recovery issues in our first COVID Survival Guide, which you can find HERE.
Do I Have To Terminate Employees Who Refuse To Get Vaccinated?
Quite possibly, thought not right away. While, in theory, you could find a job for an employee who refuses to be vaccinated and does not fit within an exemption that takes him/her out of the definition of a Covered Contractor Employee, this will not be an easy task for most companies because of the broad definition of a “Covered Contractor Workplace.” The employee would have to (a) not work on a government contract, (b) not work in connection with a government contract, and (c) not work in a Covered Contractor Workplace. Even if the employee is not working on or in connection with a covered contract, since shared services departments at most companies (HR, Legal, Finance, etc.) will render many if not most facilities a “Covered Contractor Workplace,” it’s likely an individual would have to work from home in order to fall outside the reach of the rule. If this arrangement is not feasible, then you may have to put such employees on an unpaid leave of absence and/or terminate their employment. Just make sure you talk with your Labor & Employment lawyer first.
Keep in mind, the most recent Guidance clarifies that contractors need not terminate recalcitrant employees in the first instance. According to the Task Force, contractors should use their “usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.” In other words, contractors can engage in progressive discipline in dealing with employees who are resisting vaccinations.
PAGE 16 | EXECUTIVE ORDER 14042 SURVIVAL GUIDE
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